Lynn and Repatriation Commission (Veterans' entitlements)

[2020] AATA 1331

Lynn and Repatriation Commission (Veterans' entitlements) [2020] AATA 1331 (13 May 2020)

Division:VETERANS' APPEALS DIVISION

File Number:          2016/2370

Re:Edith Lynn

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:13 May 2020

Place:Brisbane

I affirm the decision under review.

........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – veteran deceased – claim for compensation by widow – whether veteran rendered British nuclear test defence service – Statement of Principles concerning malignant neoplasm of the colorectum (Instrument No. 37 of 2013 as amended by Instrument No. 58 of 2017) – whether reasonable hypothesis that veteran’s condition related to service – Deledio test – decision under review affirmed

LEGISLATION

Statement of Principles concerning malignant neoplasm of the colorectum No. 37 of 2013 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Veterans’ Entitlements (Statements of Principles—Cumulative Equivalent Dose) Amendment Determination 2017 (No. 58 of 2017) (Cth)

CASES

Forrester v Repatriation Commission [2013] FCA 898
Gorton v Repatriation Commission (2001) 110 FCR. 321; [2001] FCA 1194
Mahoney and Repatriation Commission [2015] AATA 379
Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 562
Mills and Repatriation Commission [2011] AATA 336
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

13 May 2020

BACKGROUND

1. On 17 July 2013 Mrs. Edith Lynn (‘the applicant’) made a claim for widow’s pension on the basis that the death of her late husband, the late Mr. Robert Lynn (‘the veteran’), was related to British nuclear test defence service under ss 68(1) and ss 69B(2) of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’). The veteran was not in receipt of a pension under the Act prior to his death.

2. On 30 July 2013 the Repatriation Commission (‘the respondent’) determined that the death of the veteran was not service related.

3. On 11 February 2016 the Veterans’ Review Board (‘VRB’) affirmed the decision of the respondent.

4. On 4 May 2016 the applicant made an application to this Tribunal to review the respondent’s decision.

   LEGISLATIVE FRAMEWORK

5. Section 70(1)(a) of the Act provides that where the death of a member of the Forces was defence-caused, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the dependants of the member. The Act provides that “defence service” includes “British nuclear test defence service” (ss 68(1)). Under ss 69B(2) of the Act a person has rendered British nuclear test defence service while the person was a member of the Defence Force and rendered service in an area described in the table in that provision during a period described in the table for the relevant area. The relevant area in the table is the area “within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga” for the period commencing at the start of 27 September 1956 and terminating at the end of 30 April 1965 (item 3).

6. A person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.

7. The determination of whether the death of the veteran was defence-caused is to be made by applying sections 120 and 120A of the Act.

8. Subsections 120(2) and 120(3) of the Act provide that:

   (2)Where a claim under Part IV:

   …

   (c)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to British nuclear test defence service rendered by the member; …

   the Commission shall determine that the … death of the member was defence-caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

   …

   (3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

   (a)that the injury was a war-caused injury or a defence-caused injury;

   (b)that the disease was a war-caused disease or a defence-caused disease; or

   (c)that the death was war-caused or defence-caused;

   as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

9. Subsection 120(4) of the Act provides that except in making a determination to which subsection (1) or (2) relates, the Commission is required to decide the matter to its reasonable satisfaction.

10. Subsection 120A(3) of the Act provides that:

    (3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

    (a)       a Statement of Principles determined under subsection 196B(2) or (11); …

    that upholds the hypothesis.

11. Section 196A of the Act establishes the Repatriation Medical Authority (‘RMA’), which is an independent medical body that issues Statements of Principles (‘SoPs’) based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.

12. Subsection 196B(2) of the Act provides that if the RMA:

    (2)      … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

    …

    (caa)    British nuclear test defence service rendered by members of the Forces; …

    the Authority [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (d)       the factors that must as a minimum exist; and

    (e)which of those factors must be related to service rendered by a person;

    before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

13. A Statement of Principle (‘SoP’) is binding on the respondent and this Tribunal.

    EVIDENCE OF APPLICANT AND LAY WITNESSES

14. I will outline the evidence given by the applicant as well as the witnesses that were identified by the applicant as the lay witnesses.

    Applicant

    Evidence-in-chief

15. The applicant confirmed that the contents of her statement[1] were true and correct. She confirmed what she said in her statement that her late husband, the veteran, never talked much about his work. The applicant was asked how she came to understand that the veteran did not wish to speak about his work; she answered: “Well, he would just say that he had to go somewhere at the weekend, or through the week and he didn’t necessarily say where he was going, he would just say he was going” and that “he never told us more than that”. The applicant was taken to paragraph 13 concerning a conversation with her neighbour, Mrs. B.G., in which her neighbour told her certain things. She confirmed that she had a recollection of having that conversation.

    [1] Exhibit B.

    Cross-examination

16. In cross-examination, the applicant confirmed that the veteran never discussed his work at Maralinga with her. The applicant also confirmed that the veteran had never told her that he was stationed at Maralinga and that he had turned his back to a blast. She remarked: “He never told me, but he had told [Mrs. B. G.]”.  The applicant confirmed paragraph 14 of her statement where she explained why the veteran never told her about Maralinga but nonetheless spoke to her neighbour about this. It was put to the applicant that she cannot really explain why the veteran would have spoken to her neighbour about this; she answered: “No, I can’t. I don’t think he gave a lot of detail, but he would have given enough that – because, she knew he was going away all the time. He was not home, hardly at all”.

17. It was put to the applicant that she spent a reasonable amount of time speaking to her neighbour on a daily basis, or every few days; she answered: “Well, not on a daily basis, but we were good neighbours and we would have a cup of tea with each other and she had a husband, I was just a mother of these children and I never went out a lot and I didn’t drive in those days, or anything”. It was put to the applicant that it is reasonable to assume that if the veteran told her something, it was possible that it would come back to her; she answered: “Well, I doubt – I don’t know why he told her. I have no idea”.

18. The applicant was directed to paragraph 13 of her statement where she stated that she recalled the conversation with Mrs. B.G. and that in the third line of the paragraph it is stated that the conversation was in 1957. The applicant was asked whether Mrs. B.G. said to her that the conversation was in 1957; she answered: “Of that I can’t even remember now”. The applicant was asked if she recalled Mrs. B.G. telling her the date or is this simply something that she had inferred later on; she answered “Well, I probably – I don’t, at this moment remember it, because – but, I probably did, when I wrote this, 18 months ago”.

19. The applicant was asked if she ever recalled telling her daughter that her father had been involved in washing down contaminated aircraft; she answered: “Yes, I do recall that I’ve told them that”. The applicant was asked if the information about washing down the contaminated aircraft was not something that she was told by the veteran; she answered: “I think it probably did come from him, but I can’t tell you that’s a positive now”. The applicant was asked about the fact that she had not said anything in her statement about washing down a particular aircraft; she answered: “No, he never really did do a lot of discussing of the things he did with me”.

20. There was no re-examination of the applicant.

    Mrs. S.V.

    Evidence-in-chief

21. Mrs. S.V. was called by the applicant and verified that the contents of her statement[2] are true and correct. She stated that she was the eldest daughter of the veteran.

    [2] Exhibit D.

22. Mrs. S.V. was taken to paragraph 11 of her statement and confirmed that she was about 15 when she had the discussion with her father, the veteran. She mentioned that this was at the time the Moratorium demonstrators had let off a fake napalm bomb on the edge of the base and she saw “this most beautiful mushroom cloud”. Mrs. S.V. stated that when the veteran came back home from Vietnam on R&R she asked him about it and spoke to him “about, you know, the significance of the cloud and was it dangerous or things like that”. She stated that she referred to what was coming up in the local newspapers at the time about “the clouds in – out in the desert”, and “the Moratorium people were saying that it’s dangerous”. She remarked that the veteran “said to [her] at the time, just very quietly, that he had been at those sites”. She stated that they didn’t discuss the veteran’s work “in so far as it was a taboo subject”. She stated that she knew that he was a “safe hand man” who worked in “very high-level secret communications” and that he was always armed.

23. Mrs. S.V. was taken to paragraph 4 of her statement where she stated: “as a serviceman’s family, we moved often” and “the pack up and uplift each time meant that we kept and archived only information that was relevant and important to our family”. She remarked:

    the only things that were ever packed up were the things that were very precious or relevant to us and the reason I put that in was because, there was the newspaper clippings from 1956/57 that were kept as important pieces of documentation in our family and moved on and the family currently has those original documents and I did send in copies of that too, somewhere.

    She confirmed that certain documents and things were kept methodically, every time they moved. She explained that a lot of this stuff was stored in a locked and sealed trunk which was kept under the house after the last posting of her father to Amberley in 1972.  She added: “We all got on with life and it was opened when we started looking into this a bit more”.

    Cross-examination

24. Mrs. S.V. was taken to paragraph 7 of her statement which referred to a photograph of a Lincoln Bomber being cleaned at Amberley. She was asked whether she still asserted that it is correct, as a matter of fact, that the veteran was involved in removing things from contaminated aircraft at Amberley; she answered: “It is my understanding that that is the case”. Mrs. S.V. was asked whether she actually knew it, or is it simply something that she understood to be the case; she answered: “What is realistic to a six and seven-year old child, is not necessarily fact. But, it is my understanding and it has been consolidated over the last, you know, further years, that that was the case”.

25. Mrs. S.V. was asked about the pictures that she attached to her statement. It was put to her that none of the pictures necessarily deal with anything about the character of the aircraft that the veteran was working on, other than the particular type of aircraft. She answered:

    The relevance of that and why I put that photo in, was to say that it was from being – planes being – as I understand the term was, “Being deconstructed”, at the time and they put in barrels and melt down the metal from the plane.

    She added:

    they put the things into the barrel and melt it down and make these ash trays and things like that out of the molten metal and Dad had one of those, which he had made, and several others had too.

    Mrs. S.V. was asked if her father ever told her that he was actually involved in making the ashtray; she answered:

    I can’t actually say definitely, that he told me directly, but I know it was the one – from what my mother told me – that Dad made that ashtray and we always referred to it as the ashtray that Dad made. So, it has been family history all the way through.

26. Mrs. S.V. was taken to paragraph 10 of her statement in which she stated that “it is an accepted and credible part of our family history that my father served at Maralinga during some of his long absences from home in the late 1950’s and early 60’s”. She was asked if she accepted that there is nothing in her father’s service record to suggest that he ever worked at Maralinga; she answered:

    I don’t know what’s on his service record. I’ve had hearsay of what people have said to me. But, what I’m giving you is my understanding. But, I will say and I will add this and I don’t know whether it is relevant or not – I could be wasting your time – but, when we first started looking into this, we tried to put a case forward with my father – that went to Vietnam and they said, “No he didn’t go to Vietnam”. Well, the war memorial in Canberra confirmed that and since then, there has been other things that have been confirmed.

27. Mrs. S.V. confirmed that she was not aware of any document which shows the veteran on the ground at Maralinga. She was taken to the last sentence in paragraph 10 of her statement in which she remarked that it was her understanding that this was not an unusual omission for servicemen who served for periods in time at Maralinga, Woomera and other high security locations in the world of military communications. She was asked where she got this understanding from. She answered her late husband was a solicitor and barrister and informed her that is often the case that things have been omitted if it is a high security area. She also stated that she had difficulty in obtaining the nominal roll even after it was tabled in the Parliament.

28. Mrs. S.V. was asked about the veteran talking openly about being at Woomera; she answered:

    He spoke openly about being – the desert being – going to Woomera and about the desert. He did not speak about his work at Woomera and the nature of his work. We never asked him about the nature of his work. Firstly, because it was discouraged and secondly, because at that point in time, we weren’t old enough to understand the significance of it.

29. Mrs. S.V. was asked if the veteran used the term “Safe hands” in her presence; she answered: “Absolutely”. It was put to her that he was effectively telling her, as a child, that he was carrying top secret information; she answered: “No. A lot of the things that we have seen, and we have learned since, I am now – this is now over 50 years since these conversations were had and I’ve learned quite a bit”.

30. Mrs. S.V. was taken to paragraph 11 of her statement about her conversation with the veteran in which she stated that he told her that he been at “‘those sites’ meaning Maralinga”. She was asked why she drew the conclusion that it was Maralinga; she replied:

    At the time, I didn’t necessarily think in terms of Maralinga, but I was thinking of the sites that they were referring to, which was Maralinga, but they were talking about Emu and Albatross and Buffalo and stuff like that, in the newspapers and if you go back to the Herald newspaper in Melbourne in those times, that’s what was coming up in the – during the Moratorium marches and the demonstrations. They were still talking about what was happening in the desert in those times.

    She was asked if she did not actually know whether he was referring to Maralinga, as opposed to someplace else; she answered: “It’s an inference that I took, but I thought it was a reasonable inference, given what we were talking about and he was well and truly aware of what I was discussing”.

31. Mrs. S.V. was taken to the next sentence in paragraph 11 of her statement in which she stated: “It is also part of our family history that he had mentioned to some people that while at one of ‘these sites’, those servicemen present were told to turn their backs and not look at the explosions”. It was put to her that he had never mentioned to her that he had turned his back and not looked at the explosion; she answered: “No, he did not mention it to me”. Mrs. S.V. confirmed that he had not mentioned it to her mother, the applicant, as far as she knew. She added: “My understanding is that the only person he did was the older couple that lived next door and very good friends to my parents when my father went to America … I understand that that is when he told [Mrs. B.G.] that.'”

32. Mrs. S.V. was taken to the last sentence in paragraph 11 of her statement in which she stated: “I always understood this information to include my father himself as ‘one of those servicemen’”. It was put to her that she had no way of knowing that directly because he didn’t tell her; she answered: “No, he didn’t tell me”.

33. There was no re-examination of the witness.

    Mrs. D.B.

    Evidence-in-chief

34. Mrs. D.B., the veteran’s sister-in-law, was called by the applicant and verified that the contents of her statement[3] are true and correct. She stated that when she made the statement, she was told that her parents were living at Laverton but it is possible they could have been at Noble Park. She remarked that everything else was true and correct.

    [3] Exhibit F.

35. Mrs. D.B. was directed to paragraphs 6 and 7 of her statement. She remarked in the first conversation she detailed that the veteran told her that he had visited Woomera and been at Maralinga during the atomic bomb testing. She stated that the conversation occurred in 1959 or 1960 when she was in her early 20s. She remarked that the second conversation she detailed in which the veteran advised her that he was at Maralinga had occurred some 10 or 12 years later. She added: “I’m fairly clear about the dates because of - I was gauging them on certain times when I visited them and I had a family by then and the ages of, perhaps, a particular child at that time, and that’s what I worked on”.

    Cross-examination

1. Mrs. D.B. was directed to paragraph 7 of her statement in which she stated that she had been on a train trip and had witnessed an explosion. Mrs. D.B. was asked to explain what the explosion was and how she witnessed it; she remarked:

   It’s hard to explain in one sense, but it’s - I was just looking around me, I think we were travelling somewhere and all of a sudden I looked in the distance and this - this white cloud blew up and, you know, looked like, a bit like - a little bit like fire and, you know, the noise that sort of came just after it or with it, and it was something that I - you know, it gave me a bit of a fright, actually, and I happened to mention it to [the veteran], and, yes, he said it was a bomb going off or something to that effect. That’s probably about all I can tell you. It was - he didn’t go into details, he just sort of said what he thought it was and - but it’s always been prominent in my mind’s eye ever since that I had witnessed that.

2. Mrs. D.B. was asked how long was it after this explosion or this fire that she witnessed, when she actually visited the veteran and the applicant; she answered:

   No, I couldn’t tell you that. I couldn’t tell you the time that - the time of that happening. Because I’d visit them, you know, not every week or month or anything like that, but several times a year I would perhaps stay there and we’d just talk about everything and anything – I would ask him a lot of things, I was very close to [the veteran]. He taught me to drive, I was sort of like his little sister, and he looked after me, you know, and helped me on many occasions with different things.

3. Mrs. D.B. was asked whether in that conversation referred to in paragraph 7 the veteran had informed her what duties he was performing at Maralinga; she answered:

   No, he didn’t. All he said, and which I remember very clearly, before the bomb went off, he and the others were told to turn their backs. And - and that was all he said about it. But he - you know, he said that he was at Maralinga and at Woomera, and he just said that, “Before the bomb went off we were just told to turn our backs.” And that’s always been very clear in my mind.

4. Mrs. D.B. was asked if she knew Mrs. B.G.; she answered: “I have met her some years ago, yes”. She was asked of her understanding of how she fit in and how she knew her brother-in-law; she answered:

   Well they were quite good friends and they’d known each other for - well virtually since [the applicant] and [the veteran] were married, and they lived at Werribee when they were first married and - but they’d known them very early in their married life. I don’t know how they came to meet, but [Mrs. B.G.] was a very good friend and was sort of part of their life in many ways. You know, they had quite a bit to do with her. They did - I can’t tell you whether it was their place - her place that they rented when they were first married, but I know the - I know the name very well and I know they had, you know, quite an association with her.

5. There was no re-examination of the witness.

   Mrs. W.A.M.

   Evidence-in-chief

6. Mrs. W.A.M., the second daughter of the veteran, was called by the applicant and verified the contents of her statement[4]. She said that there were some details of the veteran’s hospital that could have been added to the statement, and it was otherwise correct.

   [4] Exhibit E.

7. Mrs. W.A.M. was taken to paragraph 8 of her statement in which she stated that her former neighbour Mrs. B.G. “reminded us that [the veteran] had been at Maralinga”. She added: “… she said at the time, again, that he had described in detail the mushroom cloud that arose, and she mentioned the fact that they had to turn their backs and - on the explosion”. She added further:

   I can’t give you verbatim what [Mrs. B.G.] said because it was nearly 45, nearly 46 years ago, but it was basically she just referred to the - that he had mentioned that he’d been there and that they’d had to turn their backs and that she saw the - that he gave details about how the mushroom cloud had formed.

8. Mrs. W.A.M. also confirmed paragraph 8 of her statement where she verified recalling in-jest conversations with her extended family that “Dad could light up a fluorescent tube from radiation”. She stated that her extended family would have been her uncles and aunts, which:

   are on my mother’s side, because we frequently went - they lived in Victoria, in the country. In the country in Victoria. And [the veteran] was not labour-intensive that I think it was a bit of a joke that they would go out and do physical work and he never assisted with any of that and it was because of the fact that he had had a radiation or whatever it was. It was just a bit of a family joke and they used to talk about things and then - that he didn’t assist with the milking or any of those other things when on the farm.

   Mrs. W.A.M. also confirmed the last sentence in paragraph 8 in which she stated that she never asked her father for details. She added: “My father never talked a great deal about his work”.

   Cross-examination

9. Mrs. W.A.M. was directed to paragraph 12 of her statement in which she referred to the “Lincolns that were cleaned down at Amberley after flying through radioactive clouds which I believe were over Maralinga”.  It was put to Mrs. W.A.M. that the veteran never said that he’d worked on the Lincolns; she answered: “Specifically to me, no”.

10. Mrs. W.A.M. was directed to paragraph 8 of her statement in which she said:

    [Mrs. B.G.] reminded us that [the veteran] had been at Maralinga.

11. Mrs. W.A.M. was asked whether that meant that she didn’t have any recollection of it being spoken about in the house; she answered:

    Well it was - it was - this - these conversations happened shortly after [the veteran] passed away and the conversation was around the fact that he had died from cancer and she had already previously had discussions with my - or told my mother that he had been there, and she said she - the conversation was basically around the fact that could that have had any - anything to do with his medical condition.

12. Mrs. W.A.M. was asked whether she knew whether her mother, the applicant, and other members of her family supported a claim for compensation on the basis that service in Vietnam had caused the veteran’s cancer; she answered: “I believe that to be the case, yes.” Mrs. W.A.M. agreed that the conversation would have been in 1972 or thereabouts. She remarked: “It would have. My father died on 22 August at five past 7 in the morning in 1972 and the conversations would have taken place the weeks after that”.

13. There was no re-examination of the witness.

    Mr. J.L.

    Evidence-in-chief

14. Mr. J.L., the son of the veteran, was called by the applicant and verified the contents of his statement.[5]

    [5] Exhibit C.

15. Mr. J.L. was directed to a statutory declaration[6] that he made in which he stated that his father, the veteran, was in Vietnam and involved in the construction of communication systems there.

    [6] Exhibit A, A16.

16. Mr. J.L. was asked if he was no longer claiming that the veteran was irradiated as a result of his service in Vietnam. Mr. J.L. remarked: “It was my understanding that my dad was involved in an installation in Vietnam where he was exposed to … twice the amount of radiation that was safe”. He added: “And that was just - that was just one event. He also told my uncle in Western Australia that as well”. It was also put to Mr. J.L. that it was part of his family folklore, that he was involved in washing down and dismantling Lincoln Bombers at RAAF Amberley; he answered: “At Amberley, yes”. Mr. J.L. was asked if the veteran told him about that directly; he answered: “He never walked up and stood in front of me and told me that, no”.

17. Mr. J.L. confirmed that the conversation that he had with the veteran about disposing of water collected after the washing down of contaminated planes from Maralinga is referred to in paragraph 8 of his statement. Mr. J.L. was asked if the veteran said that he did any of that himself; he answered:

    In that conversation. I can’t remember the exact conversation but it’s my understanding that he was involved in the washing down. We’ve got a photograph at home of him in one of the Lincoln bombers that it’s my understanding that he was … sitting where the radio guys would sit and it’s family folklore that he was involved in the dismantling of the Lincolns that were used at the British Nuclear Test, and there’s also a photograph that we have at home of - of water on the ground near a Lincoln and our understanding is that that was when the planes were washed down. My father’s not in the photo. My understanding is that he took the photo.

18. Mr. J.L. referred to family conversations in the presence of his uncle and the veteran, both of whom served in the RAAF; he remarked:

    there were things that were talked about there and I probably picked up a lot of this stuff by listening to that sub-consciously, by osmosis, I guess, so I was never told specifically - my father never walked up and stood in front of me and said “I was at Maralinga and I washed down planes”. No, that never happened. I just picked a lot of this stuff up because it was just - it happened commonly. It’s - we were at my mother’s parents’ place every Christmas.

19. Mr. J.L. stated that these conversations occurred when the veteran was alive and he would have been about 19 years old. He added:

    There were conversations that happened about things that my father - this is all very hazy, but things where my father had gone, my father went to - I’ve listed places there, Butterworth and Woomera and those - those places, if they were mentioned in the conversation. It was not uncommon to hear them. I didn’t - it wasn’t - it wasn’t new.

20. There was no re-examination of the witness.

    TECHNICAL EVIDENCE

    Dr David Douglas

    Examination-in-chief

21. The applicant called Dr David Douglas, specialist physician in occupational medicine, who gave evidence under affirmation. His professional qualifications and experience are listed in his report.[7] Dr Douglas confirmed that the contents of his report discuss what his opinions are in relation to issues concerning radiation exposure at Maralinga. Dr Douglas remarked that part of the training for occupational medicine includes radiation control. He stated that he was very senior in the UK Health & Safety Executive and came back to Australia and took up a position of Head of Occupational Health and Radiation Control with the South Australian Health Commission. In that group was a radiation scientist, Ms Jill Fitch, who was the physicist who dealt with all the detailed physical - detailed technical matters in relation to radiation therapy and X-ray machines in South Australia. Dr Douglas gave evidence that in 1980 he and Ms Fitch were flown out to Maralinga with scientists from the Australian Radiation Laboratory (‘ARL’) (now called Australian Radiation Protection and Nuclear Safety Agency (‘ARPANSA’)) They went to Maralinga to check on what had been done to remediate the land after the British nuclear testing in 1956/57 of the seven bombs, and then later up to 1963. They accepted that “it had all been fixed”.

    [7] Exhibit H (pages 2-3).

22. Dr Douglas stated that he wasn’t involved with Maralinga until more recently when he was asked to give some opinions in relation to people who had been exposed to the first Hurricane test at Monte Bello in 1952. He was also asked to give an opinion in relation to exposure at Hiroshima following the explosion in August 1945. Dr Douglas remarked that he had developed an extra expertise by looking at:

    not just the external radiation, which is what most people think of in terms of atom bomb; … the blast and the acute high levels of external radiation which kill people, but what is more subtle and more important and most relevant in this matter is the inhalation of dust fall-out which is not going to produce high external radiation but has the potential to produce massive doses of radiation in the form of alpha particles at the site where the dust settles. That gives a very high exposure to tissue.

    Dr Douglas remarked that this seemed to him to give a very clear explanation for a lot of the cancers after Hiroshima, but also for the cases that he had been asked to give opinions on. Dr Douglas remarked that he sought a lot of advice and expertise of British scientists, particularly Dr Chris Busby, who is a co-author of a major report which he cites in his reports as well as Ms Fitch. Dr Douglas remarked that he was concerned about alpha particles “because they are associated with the dust, plutonium and uranium dust”.

23. Dr Douglas mentioned that he gave a scientific paper for presentation at the Royal Australasian College of Physicians in their annual meeting in Adelaide in May 2016. In the week before he took his second trip to Maralinga which is now a restricted area. He mentioned that in the late ‘90s or mid-late ‘90s, ARL made prognostications about the risk of inhaling the dust of plutonium with the alpha particles, and they spent a vast fortune in remediating the land for a third time.

24. Dr Douglas was referred to a diagram which was later tendered in evidence.[8] The document comes from the Royal Commission Report[9] and Dr Douglas was asked to explain his markings. Dr Douglas stated that he put a circle around the test sites which are very close and indicated that there was the potential for an intense amount of fall-out of plutonium uranium in that area. He remarked that “Roadside” was a tent city with decontamination, a little airstrip nearby, where most of the people actively involved in setting the whole test would be camping. Dr Douglas also remarked that the handwritten observation is where people would go to observe the mushroom cloud.

    [8] Exhibit M.

    [9] The Report of the Royal Commission Into British Nuclear Tests In Australia, 20 November 1985, Volume 1, pages 274-275; ‘Figure 8.0.1 Map of South Australia Showing Location of Maralinga’ and ‘Figure 8.0.2 Map of Maralinga Range’.

25. Dr Douglas confirmed that in his report he has outlined his opinions and the basis of his opinions. He confirmed that in the conclusion of his report, the contents of the report are true to the best of his knowledge and belief and the opinions expressed in that report are his own opinions which are honestly held by him.

26. Dr Douglas was referred to his report in which he assessed the dosage which the veteran would have experienced in respect of inhaling radioactive dust during his service at Maralinga and Amberley. Dr Douglas initially focused on Maralinga. He was asked what he understood or assumed was the pathway by which the inhalation occurred; he answered:

    The pathway is by inhalation”. Dr Douglas remarked: “when particles, particularly fine particles, are inhaled, a lot of them are then exhaled and then caught up in saliva or cough and then they can be ingested. So even though the main pathway is inhalation, there is still some element of ingestion. So the actual particle may settle in the lung, in the throat, in the bronchi or in the mouth, pharynx or further down into the full gastrointestinal tract.

    Dr Douglas was asked if that included the colon, he answered: “Yes”.

27. Dr Douglas was asked: “In terms of inhalation by way of dust… what sort of task would have needed to be undertaken in order for a person to have that inhalation?”; Dr Douglas remarked: “Walk there…. Go there”. Dr Douglas remarked: “even at Roadside there’s the chance … even those who weren’t involved in the test would be taken to see the damage they’d be walking around the dust”. He remarked that that would be a sufficient condition for the inhalation of the radioactive particles to occur.

28. Dr Douglas confirmed that he has referred to service at Maralinga and Amberley which was his understanding of the veteran’s service experience. He was asked, if he were to disregard the veteran’s service at Amberley, whether that would affect his conclusions about the level of cumulative equivalent dose of 0.1 sievert that he mentioned, he answered: “No. No”. Dr Douglas explained:

    Well, the risk from - the risk - the probability of inhaling radioactive plutonium dust was extremely high by anyone who attended Maralinga at the times of those tests. Even subsequently, ARL showed how dangerous it was and that’s why they did the repeat clean-up. They were telling the community, the indigenous community, the locals, everyone, about how dangerous it was 40 years later. So anyone who went to the site as a service person and who had the probability of observing a mushroom cloud and of being in that area, even for a day would be adequate to have the high probability of inhaling the toxic dust and then having a - just a particle lodged in the bowel somewhere and it then radiate the local tissue with alpha particles.

29. It was put to Dr Douglas that the mechanism is radiation of the local tissue by the particle; he agreed. Dr Douglas was asked if that is something that occurs over a short space of time, he answered: “No, over time”. He was asked how long it remains emitting or radiating; he remarked: “For the life of the radionuclide, plutonium, 24,000 years”. He also confirmed that if the particle is localised in a spot in the bowel, it would continue to radiate to the tissue adjoining it.

    Cross-examination

30. Dr Douglas was referred to when he went to Maralinga in 1980 and then subsequently being asked to give opinions about radiation exposure to a number of people. He was asked what his involvement was, if any, in between that time in giving opinions about the effects of radiation exposure. Dr Douglas stated in the 80s he advised a major Australian company to stop using a building product because it emitted radiation. He stated that he is otherwise advising on a whole range of issues. Dr Douglas clarified that his experience was in the 1980s, 90s to the present. He stated that his experience is “very much on inhaled dust and chemicals and in this case, I see that as the main expertise, the one of inhaling a dust and this particular dust is so toxic because it emits alpha particles”. He added that it is a different expertise from that of external radiation from X-ray machines or radiotherapy with which he does not deal.

31. Dr Douglas was taken to the first page of his statement where he stated:

    I understand that the deceased veteran Robert Lynn served in the Australian Air Force from 1946 until his death and was posted to Maralinga in 1957 during the British nuclear testing program.

32. Dr Douglas was asked the basis of his understanding in this statement, he stated that it is an assumption he has made on instructions as is his assumption of the veteran being posted to Amberley.

33. Dr Douglas stated that he was familiar with the document titled Australian Participants in British Nuclear Tests in Australia, Dosimetry and Mortality and Cancer Incidence Study, May 2006, Volume 1: Dosimetry (‘the Dosimetry study’)[10] and acknowledged having referred to a number of its chapters in his report, particularly at pages 4 to 6. It was put to Dr Douglas that none of those references is a reference to chapter 7 of the Dosimetry study which goes into quite a bit of detail about the various duties of people at Maralinga “during the Buffalo and Antler tests and some of the minor explosions afterwards”. Dr Douglas confirmed that he recalled reading chapter 7. It was put to Dr Douglas that chapter 7 made the point that “depending on the particular function the person had, the amount of ionising radiation that they could have been exposed to internally as well as externally would vary”; he answered:

    Yes, but overall can I say the report is a disgrace because it has not taken into account the - my argument which is the dose of alpha particles from inhaled fallout dust. They have not specifically addressed it even though the same organisation had addressed the local indigenous population and the people in general and the Parliament to justify the major clean-up later. So it’s - it’s – it really is missing, the whole lot. There is another paper I didn’t - I gave it to Mr O’Connor which is my paper I gave to the College of Physicians and in that I have made that point a bit stronger because they use the Dosimetry study for the epidemiology study which they then dismissed as being any link between the cancers they found and the - and the radiation dose and in that I have highlighted the - the major shortcomings of the - of the Dosimetry study.

    Dr Douglas agreed that the article is not before the tribunal.

    [10] Exhibit J, Australian Participants in British Nuclear Tests in Australia, Dosimetry and Mortality and Cancer Incidence Study, May 2006, Volume 1: Dosimetry.

1. It was put to Dr Douglas that the Dosimetry study actually took into account things like the resuspension of plutonium fallout, he answered: “Yes, yes, in theory”. He added:

   No, but they didn’t calculate it, they did not use, by the way, these tables that I’ve put in my report have been before ARL who have come back with - in other matters and they’ve never questioned them because they are tables which have been produced by the expert physicists and with all the assumptions that you need to - to make to state the type of energy that an alpha part that would come from a particle of plutonium in the form of alpha particles but this is not in that Dosimetry, they ignored it.

2. It was put to Dr Douglas that it would be fair to say that his entire methodology is radically different from the Dosimetry study; he answered:

   No, it’ s not radically different, it is logical and it is supported by major scientists in this field who, I agree, the national and international bodies conveniently keep ignoring. It’s a very important point you’re making because it’s underestimating the risk to all of us from inhaled particles of plutonium.

3. Dr Douglas was asked to concede that the Dosimetry study purported to model the effects of ionising radiation that would be inhaled, he answered: “No, I don’t accept that Dosimetry study at all”. Dr Douglas reiterated that he didn’t accept the study at all; he remarked:

   No, because they have not addressed the most important obvious thing. If you’ve had radioactive fallout and you have a chance of inhaling it that’s obvious. It’s like saying - this is why I use my experience in asbestos, if you’ve got asbestos around we’d all be running, we’d be out of here but why are they not mentioning it? Why are they not noting in that Dosimetry even though they had in justifying the clean-up of the site earlier, why you’ve asked me.

4. It was put to Dr Douglas whether he was saying that they did not take into account and they did not model the likely effect of inhaling radioactive particles such as plutonium and other things; he answered: “Yes. I’m saying they did not reflect that in their Dosimetry. See, the facts are there that I’ve put in here, these are coming out of international documents”.

5. It was put to Dr Douglas whether he was saying that they did not take into account and they did not model the likely effect of inhaling radioactive particles such as plutonium and other things; he answered: “Yes. I’m saying they did not reflect that in their Dosimetry. See, the facts are there that I’ve put in here, these are coming out of international documents”.

6. It was then put to Dr Douglas that these international documents that he had referred to at page 9 of his report consist of a minority report from the UK. He remarked: “Yes, it’s a minority report … But the facts of the science of the energy from the plutonium and uranium is not in dispute, it’s never been disputed” It was put to Dr Douglas that the majority report took a different view, he answered:

   Yes, overall it ignores it in the same way as ARL ignores it, except I keep making this point. ARL ignores it when it suits them. When they want to do the clean-up they know the risk. You go out there now and you’ll see signs even after the thing warning of inhalation of plutonium. It’s there. That’s the Dosimetry to look at, not that report.

7. Dr Douglas confirmed that he rejected the Dosimetry study and the majority approach from the UK. It was put to him that he is saying that the only thing that really matters is you inhale something; he agreed that it was a fair summary of his approach and went on to say: “Yes, it is, because it’s correct”. Dr Douglas accepted that different activities at different times would change the risk from external radiation.

8. Dr Douglas was asked about internal radiation; he answered:

   Internal radiation, the risk is going to be greater for those who are there. If - if they took no protection and if they were there for some time and they had the risk of inhaling the fallout dust the risk is - is high but it’s not through any modelling that they - they do based on external radiation, that’s my problem with it. It is really an understanding of just the energy and just the risk of alpha particles coming from plutonium. It’s - it’s like - we’re back to the asbestos dust or any other toxic dust, the bigger the dose, the longer you have it, the greater the risk but no one really can just do modelling on - on that, you measure the amount of dust but nobody’s done that. All we know from this sort of exposure is you need very little, hardly any to be enough.

9. Dr Douglas was asked whether he “would reject the conclusions in chapter 7 of the Dosimetry entirely saying that there are categories from to A to F about categories of dose exposure”. While he did not have the document in front of him, he remarked:

   Yes, yes, in - in - in terms - in relation to your question, yes, in simple terms I’m happy to reject all of that in terms of this risk assessment in this case. I’m dealing with people who are exposed to dust at Maralinga and the risk assessment is totally different. My risk assessment is totally different from that. Happy to agree.

10. Dr Douglas stated that he assumed that at Maralinga the veteran wasn’t provided with any respiratory protection. He remarked that “because no one else was so why would he have been?” It was acknowledged that members of the Indoctrinee Force in the Buffalo operation weren’t provided with respiratory protection, Dr Douglas was asked whether the veteran was or wasn’t in that group; he answered: “No, I can’t. Well, they were - they were scientists, they were a different group”. It was put to Dr Douglas that they weren’t scientists, rather they were commissioned officers, he agreed. Dr Douglas acknowledged that he could not say whether the veteran was in that group. Dr Douglas also agreed that he could not say whether the veteran was provided with respiratory protection and acknowledged that would have made a difference to his inhalation of plutonium and other things.

11. Dr Douglas remarked:

    So we come back, if I may, to this dosimetry all the time which I just cannot accept and it’s because - not just because of that SERRI minor report and the expertise given to a previous AAT by Dr Busby and me but it’s what the ARL itself has been saying and I can show you from my other presentation, not - I didn’t put it in this report in relation to [the veteran], but it shows a veteran at Maralinga testing a Land Rover wearing shorts and that’s about it. No protective gear at all. And yet, later in the late nineties when they were rehabilitating the place further, here were the people not only in a respirator but in a sealed vehicle with a remote control - with a - sorry, with a prod of a dosimetry dose meter testing the land. If that’s not an admission by ARL of what the risk is I don’t know what - what - what more I could say.

12. It was put to Dr Douglas whether he was effectively saying that ARPANSA and its predecessor ARL have been gilding the lily or basically being untruthful; he answered:

    Not only am I saying something similar, I’m not sure I’ve used any of those words myself, but I get what you’re implying, but the Commission - the Royal Commission more or less said that, they said how where Australia was let down by people like the head of the Safety Group which is known as Tittaten who was out here and so it goes on from that.

13. Dr Douglas was asked about whether he applied the SoP with the amendments in September 2017 in his report of October 2017 he answered: “I believe so”. Dr Douglas was asked whether in determining the cumulative equivalent dose, he took into account the guide to calculating the dose that was set out by ARPANSA, he answered:

    I - yes, I’ve been into that in great detail and it’s - again, I’m afraid, I’m going to give you not a full critique because I haven’t done it, but I’m highly critical of it because in the document there’s nothing to talk about calculating or estimating or assuming or doing anything in relation to inhaled plutonium dust from nuclear testing and when - I’ve just annotated my copy of it, because I went to the references that they have here, for example, ICRP130, this is on page 13 2016 and that then refers you to a whole stack of other ICRP publications and it’s really all about - it’s in the - it’s in the world of radiotherapy and X-rays and external radiation, it’s nothing - none of those documents deal with calculating or estimating or assuming radiation from alpha particle emissions from plutonium dust. There just is not. So it doesn’t have a direct relevance. It looks good, very impressive but it’s not for this sort of case.

14. Dr Douglas acknowledged that on page 13 of that document it refers to the Recommendations of the International Commission on Radiological Protection – March 2007 (‘the ICRP methodology’)[11] recommending the use of “different biokinetic models” based on radionuclide and method of intake and in particular respiratory model for inhalation. Dr Douglas was asked whether he is saying that the document has nothing to do with this case, he answered:

    Not applicable to this case. I recommend you read it and you tell me how it applies because I had it, I’ve been through it and then it refers to other documents. The issue - this is a dust issue, the inhalation of a very toxic dust, that’s what it is, it’s nothing really to do with radiation in the common sense that you and I know about it at X-rays machines.

    It was put to Dr Douglas that the guide does refer to internal exposure pathways, he agreed. It was also put to Dr Douglas that the guide does actually deal with radiation entering the body and it radiating organs and tissues, he answered:

    Sure, but not in the way I’m arguing it”. Dr Douglas was asked whether he basically fundamentally disagree with their methodology, he answered: “Yes, because it doesn’t apply directly to this type of case. That’s the problem.

    [11] Exhibit Q.

15. Dr Douglas was asked when he was looking at the Statement of Principles and the definition of cumulative equivalent dose, did he “cotton on” to the fact that the definition requires one to apply the methodology document; he answered:

    It does and I tried to. You bring in anyone you like to go through it and say how they directly apply the inhalation of a toxic dust with emitting alpha particles to this document and also - then also ask them how they reconcile the difference in their risk assessment between the use of what they did in the remediation but I’ve been over that many times, if I make my point.

16. It was put to Dr Douglas that he has purported to apply and come up with a cumulative equivalent dose in his report despite not knowing whether the veteran had respiratory protection or what he was doing at Maralinga, Dr Douglas agreed.

17. There was no re-examination of the witness.

    Dr Rick Tinker

    Examination-in-chief

18. The respondent called Dr Rick Tinker who gave evidence under affirmation. He confirmed that he prepared a report dated 21 May 2018 addressed to the Australian Government Solicitor which contained his Curriculum Vitae.[12] Dr Tinker remarked that since 2011 he has been the director of assessment and advice in ARPANSA. He explained that as director he leads a team of scientists to undertake risk assessments and characterise that risk to look the health impacts of radiation on people and the environment. He stated that he had been at ARPANSA since 2002 and before that was at a similar agency based in New Zealand undertaking a monitoring and measurement role.

    [12] Exhibit O.

19. Dr Tinker confirmed that his report sets out his opinions on the questions that he was asked and sets out the basis for those opinions. He confirmed that the contents of the report are true to his knowledge and belief.

    Cross-examination

20. Dr Tinker was directed to annexure A of his report concerning the appropriate methodology to assess whether a person received a cumulative equivalent dose. Dr Tinker confirmed that alpha particles are much more damaging than photons. Dr Tinker was asked if he agreed that Maralinga in the time period in which you were asked about was an area which after the detonation of the bombs was a contaminated area contaminated with alpha particles; he answered: “With regards to nuclear weapon detonations they were - the environment was contaminated with radioactive material that did include alpha omitting radionuclides”. Dr Tinker was asked if the environment includes alpha particles and whether they are more hazardous than photons because they're highly ionising; he answered: “That is correct but it does rely on the alpha particles being incorporated in the body.” Dr Tinker agreed that it relies on some method by which the particles become internalised.

21. Dr Tinker was directed to the second part of his response in which he was asked to apply the methodology to form a view as to whether the veteran would have received a cumulative equivalent dose of at least 1.35 sievert.  Dr Tinker was asked if he proceeded on the basis that, in determining the cumulative equivalent dose, he has applied the mean dose absorbed over the entire mass of the particular tissue or organ multiplied by a radioaction weighted factor; he answered: “we were unable to determine a cumulative equivalent dose for [the veteran]”.

22. It was put to Dr Tinker that in the methodology that he applied he didn’t average it over part of the organ or part of the tissue, here the colorectum, and stipulated that the methodology required the averaging over the entire mass of that tissue or organ; he answered:

    So if we were to determine an equivalent dose it does require - the methodology does require averaging over the entire tissue or organ.  And the methodology takes into account the distribution of the radionuclide in the sensitive parts of the organ or the cells in calculating the mean absorbed dose.

23. Dr Tinker was asked about his opinion that an individual dose reconstruction couldn’t be undertaken with respect to the veteran. He was asked on what basis did he put the proposition that an individual dose reconstruction couldn’t be undertaken for the veteran; he answered:

    To undertake a dose reconstruction we require information about the duration of time and time period spent at Maralinga, the location at Maralinga, and the type of job that he would [have] undertaken at Maralinga and that enables us to build an exposure scenario.  That does not relate to any of those [dosimetry] records at the time.

24. It was put to Dr Tinker that he has records of those that were exposed at Maralinga; he answered: “Yes, there are I think around four per cent of veterans who were monitored for external exposure, not internal”.

25. It was put to Dr Tinker that the Dosimetry study,[13] which is cited in Dr Tinker’s report, relies on material establishing or going to external exposure; he answered: “It also relies on measurement and monitoring data of the environment, so they are key parameters in being able to determine a dose to an individual or a population cohort”. It was put to Dr Tinker that it is recognised in the Dosimetry study that for internal exposure such as that resulting from inhalation of radioactive dusts, there was no virtually no monitoring data, which was available, and only computed modelling could be used; he answered:

    So it's not actually possible to monitor, like you do with the [dosimetry], the intake of radioactive material into a person.  It has to be always modelled based on environmental factors.  It's not actually possible to do a real time dose estimate.

    It was put to Dr Tinker that that publication also identified specifically that there was a deficiency in information which could be used to determine the estimation of dosimetry because there was a lack of personal monitoring data; he answered:

    Yes.  So for personal monitoring we look at external exposure and that is one of the major exposure pathways at Maralinga.  And, yes, only four per cent of the Australian veterans were monitored for external exposure.

    [13] Exhibit J, Australian Participants in British Nuclear Tests in Australia, Dosimetry and Mortality and Cancer Incidence Study, May 2006, Volume 1: Dosimetry.

26. It was put to Dr Tinker that it was recognised and accepted by the Dosimetry study that there was a deficiency in the extent of the evidentiary material or information on which they could rely in providing an estimation of dosimetry; he answered: “Yes, but that's only for external.  For internal that is not needed for the calculation”.

27. Dr Tinker agreed that under heading 4 of his report he talked about the avenues of exposure which a person such as the veteran, if he was in Maralinga, would have been exposed to. Dr Tinker confirmed that he discussed the principal source of delayed external radiation in the third paragraph under the heading: “At what time would Mr Lynn have received that cumulative equivalent dose?” and that he stated: “The principal source of delay to external radiation exposure was from gamma or beta radiation received whilst an individual is moving over contaminated areas”.

28. It was put to Dr Tinker that a source of exposure from radiation, which an individual could receive moving over contaminated areas is the inhalation of dust containing that radioactive material, he answered: “Yes, that is correct although just for clarification the gamma and beta radiation is for external exposures only”.

29. It was put to Dr Tinker that dust containing alpha particles could be inhaled; he agreed. He was taken to the passage where he wrote: “Inhalation of dust containing radioactive material would leave the intake of radioactive material and consequent internal exposure”.

30. Dr Tinker agreed that he had qualifications in respect of medicine more broadly and in particular in terms of the biological pathways in the body by which inhaled particles would pass through the body; he agreed that he had experience in this area.

31. Dr Tinker was asked to outline to the Tribunal, further to his experience, what his expertise was; he answered:

    So as a scientist I have the ability to review the radiation protection literature to understand how… and what the mechanisms are for the radionuclides [that] are absorbed, retained and excreted in the body.  So there are literally thousands of radionuclides and many different components to organs and tissues that we actually do need to rely on the literally thousands of publications that have been produced in this space to be able to make an informed decision on what the best available method is.

32. It was put to Dr Tinker that there is a biologically plausible mechanism by way of inhaled particles travelling through parts of the body and becoming deposited in close proximity to the colorectum; he answered:

    So I do agree there is a definite plausible mechanism for radioactive material as particulates to travel through the GI tract or the respiratory tract.  And for the case of plutonium there is clear evidence of the way plutonium is absorbed in the body and deposits both in the lungs, the liver and in the surface of the bone

    Dr Tinker clarified that the reference to GI tract is a reference to the Gastrointestinal tract.

33. Dr Tinker was taken to the report of Dr Douglas of 10 October 2017 and a presentation paper that Dr Douglas had prepared which was provided to him as part of the material to consider when forming his opinions. Dr Tinker acknowledged that Dr Douglas had referred extensively to the minority report of the members of the committee examining radiation risk from internal emitters (SERRI minority report), the committee for which was established by the UK Department of Health, Department of Environment in 2004.

34. It was put to Dr Tinker that there is nothing in his report where he had responded to what Dr Douglas had to say about that report or the extracts thereof, which he has included in his report of 10 October 2017. Dr Tinker answered:

    In my response I refer to Dr Douglas' methodology and opinion and that's largely - which is largely based on the minority report.  So my opinion stands is that there is simply no scientific support to ascertain that the ICRP methodology seriously underestimates the very logical risks from internally deposited radionuclides, which is what the SERRI minority report presents.

1. Dr Tinker was asked whether the body of scientific evidence supports the majority report of the SERRI committee. Dr Tinker answered:

   That's correct.  So the SERRI committee produced a main report with recommendations and that report does describe the - does provide a review that there is no sound scientific basis to support the minority approach and that it is actually flawed.  And that approach is supported by ICRP as well.

2. It was put to Dr Tinker that there is a different viewpoint of the eminent scientists who comprised the minority on the SERRI report; he answered:

   It is a view that has gone through scientific evaluation and it's been demonstrated that there is no evidence to support the proposal that ICRP underestimates the risk.  And that includes also the statistical analysis that the SERRI members from the minority report undertook and actually providing a mechanism that has gone through the rigours of science and that it has gone through repeatability and reproducibility to validate their methods.

   He added: “So simply that there is no evidence to support at this point in time the view of the minority report”.

3. It was put to Dr Tinker that his proposition is consistent with what he said earlier, namely that when assessing the equivalent dose one applies a methodology which supplies the mean absorbed dose averaged over the entire mass of a particular issue or organ as opposed to a part of the organ or tissue; he answered:

   So maybe I just should clarify that point.  So when we average over the mean of a tissue and organ we do take into account the sensitive parts of those organs and therefore we do an average weighted mean of those sensitive cells in those organs and consider the alpha particles.  So we do consider the micro dosimetry of a dose received to an organ.

4. Dr Tinker was asked if the crux of the dispute between the majority and the minority in the SERRI committee report is extracted relevantly on page 8 of Dr Douglas' first report where he refers to pages 48 and 49 of the minority report where the authors stated:

   Under certain circumstances or for certain internal radionuclides and particles some cells or even parts of a cell can receive very high levels of ionisation density

5. At page 54 of the report it is stated that:

   Through inhalation or ingestion they become internalised in immobilising tissue giving rise to local tissue doses, which are high compared with the same amount of energy averaged over the whole body of the organ.

6. It was put to Dr Tinker that the key point is that he is applying methodology which applies the energy over “the whole body of the body”; he answered:

   So again going back to our definition of how we determine the cumulative equivalent dose, we do take into account the [different] sensitivities of an organ by looking at those microscopic regions and how different radiation affects those different parts of the organ.  Then we go and look at the macro scale of the organ, so we look at it in its entirety.  So where the minority report methodology breaks down and can't be validated [is] when we look at health outcomes.  There's simply no evidence, epidemiological evidence, which is independent of both ICRP and the minority report that supports the idea that there is an increased risk from using the method proposed by the minority”.

7. Dr Tinker was directed to page 9 of Dr Douglas' first report where he extracted some tables setting out what dose of radiation is actually emitted by particles of certain radioactive material. Dr Tinker was asked if those tables are not controversial; he was unable to access the table and asked for the table to be read out to him. In discussing the tables Dr Tinker remarked:

   So that's basically describing a typical particle size that we are interested when it comes to intakes of radionuclides and 30 micrometres is probably one of the bigger particles that we would be interested from an intake perspective, so that seems reasonable.

8. It was put to Dr Tinker that the information as to the particle diameter compared with the dose is accurate because he has not commented otherwise in his report to say that the information in those tables is wrong; he answered:

   … because I don't have the table in front of me I can't comment right now.  But if we're looking at particle size we also need to understand the chemical property of the radionuclide that's been ingested.  And that tells us whether it's soluble or insoluble and that allows us to biokinetically model this absorption, its retention and its excretion in the body.

   Re-examination

9. Dr Tinker was directed to page 1 of his report where he states that the equivalent dose is derived by multiplying the mean absorbed dose averaged over a particular tissue or organ by a radiation weight and factor.  Dr Tinker was asked where the concept of equivalent dose comes from; He answered:

   The concept of equivalent dose is used to define a dose from a radiation that is absorbed into a typical mass.  So we determine the equivalent dose because we need to take into account the different types of radiation whether it's alpha or beta or gamma.  So we multiply the absorbed dose by a weighting factor to determine an equivalent dose.

   Dr Tinker confirmed that the concept of an absorbed dose and an equivalent dose is found in the ICRP methodology.

10. Dr Tinker was asked what involvement he had in regard to drafting the SoP (instrument number 37 of 2013 and number 58 of 2017). He remarked that he had no involvement in drafting the 2013 SoP but he had significant involvement in drafting the amended 2017 SoP. He remarked: “I have developed or altered the guide to calculation of cumulative equivalent dose for the purposes of applying ionising radiation factors contained in the statements of principles”.

11. Dr Tinker was asked to clarify whether it is his view that Dr Douglas' methodology, as indicated in his report and as reflected in the minority report of the SERRI committee, lacks any kind of validating scientific evidence; he answered: “Yes, it's my opinion that Dr Douglas' methodology, and as reflected in the minority report, lacks any scientific support to suggest that the ICRP methodology underestimates radiation risk”.

    CONSIDERATION

    Whether the veteran was within the prescribed test site areas at the relevant times

12. The applicant, in her Statement of Facts and Contentions, has acknowledged that the only RAAF involvement in cloud sampling during Operation Buffalo (the first series of atomic tests at Maralinga) was limited to an Australian crew flying an RAF Canberra, which was decontaminated at RAAF Edinburgh.[14] This submission is based upon the Dosimetry study.[15] The Dosimetry study[16] reported that the only members of the RAAF that served at Maralinga and who received a radiation exposure of greater than 50 mSv were some 19 members in total. These personnel were in a Canberra bomber and the veteran is not one of those who are listed. There is no indication from the service records of the veteran that he had ever been stationed at RAAF Edinburgh and therefore could not have been involved in the decontamination of the RAF Canberra. I also mention that those records do not refer to service at Woomera.

    [14] Applicant’s Statement of Facts and Contentions dated 4 December 2017, paras 15 and 16.

    [15] Exhibit J, Australian Participants in British Nuclear Tests in Australia, Dosimetry and Mortality and Cancer Incidence Study, May 2006, Volume 1: Dosimetry, page 51.

    [16] Exhibit J, Australian Participants in British Nuclear Tests in Australia, Dosimetry and Mortality and Cancer Incidence Study, May 2006, Volume 1: Dosimetry, Table 7.9.2.

13. I should mention that at the outset there was a contention from the applicant that the veteran was involved in cleaning Lincoln bombers at Amberley. I cannot be reasonably satisfied that the applicant who was a senior NCO and had a radio specialty as well as having other security duties would be involved in cleaning the Lincoln bombers. There is evidence that the decontamination was undertaken by a hygiene inspector and three engine fitters from No. 3 Aircraft Depot. There may certainly have been other personnel involved, but it is not likely that the veteran himself would be involved in decontamination duties bearing in mind his rank and responsibilities.

14. One of the matters that I have to determine is whether I can be reasonably satisfied that the veteran was, at the relevant times, within the areas prescribed by ss 69B(2) of the Act, namely, the area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga for the period starting at the start of 27 September 1956 and ending at the end of 30 April 1965. I have determined that I cannot be reasonably satisfied that the veteran was in the prescribed areas at those times. This is because the service records of the veteran, which I consider to be comprehensive, do not contain any reference to the veteran having served in the Maralinga locality (T20 and T31). The respondent has pointed out that the service records disclose when the veteran was given other duties even for one day.

15. The case of the applicant is based upon several documents that are in evidence. The applicant has placed reliance on an identification card[17] that was issued to the veteran. This identification card cannot be relied upon to show that the applicant was at Maralinga at the time of the nuclear explosions. The identification card appears to have been issued sometime after the last nuclear test that occurred at Maralinga on 9 October 1957 (Operation Antler).[18] This is because it describes a rank that the veteran was promoted to on 17 August 1960. It has also been mentioned that the card bears the expiry date of 17 February 1964.[19]

    [17] Exhibit A, T26, T33, pp.138 and 150.

    [18] Exhibit J.

    [19] Exhibit A, pp. B8-B9.

16. The veteran was listed on the Department’s Preliminary Roll of Australian Participants in the British Atomic Tests and issued with an identification card. However, he was not on the Study Roll which was used as the basis for Australian participants in British nuclear tests in Australia Vol 2: Mortality and cancer incidence.[20] In this report it is noted:

    Some individuals were excluded because a lack of data on the dates of entry and exit to test sites cast doubt on their participation in the tests. These were people on the nominal roll by virtue of the existence of a Maralinga Security Card.[21]

    Certainly, there is an indication from the existence of the security card that the name of the veteran would have been entered on a roll.

    [20] Exhibit P.

    [21] Exhibit P, p 23.

17. It is, of course, possible that the veteran had rendered British nuclear test defence service under the Act if he had served at Maralinga after he was promoted on 17 August 1960 and was in a prescribed area at any time until 30 April 1965. However, there is no contention by the applicant that the veteran had served in the areas prescribed by ss 69B(2) of the Act after the promotion of the veteran in 1960 and there is no evidence before me that this is the case.

18. I consider that the applicant and those witnesses that are identified by the applicant as being lay witnesses gave evidence according to the best of their recollection. I want to particularly mention that the applicant was in my opinion an honest person who gave evidence to the best of her recollection and did not embellish her testimony. I later mention that when she lodged her claim in 1997 she did not exaggerate the veteran’s alcohol and tobacco consumption. It is crucial, however, that the veteran did not ever tell the applicant that he had served at Maralinga. It is difficult to understand why the neighbour, Mrs. B.G., would be informed that he served at Maralinga. Mr. J.L. quite properly gave evidence before the Tribunal that the veteran had never said: “I was at Maralinga and I washed down planes”.  Mrs S.V. stated that it was part of her family history that the servicemen would turn their backs at an explosion. Mrs. S.V. stated that she made a reasonable inference that that the veteran served at Maralinga, although he had never directly informed her that he was at Maralinga at the time of the nuclear explosions.  One member of the family who claimed to have been directly informed by the veteran that he was at Maralinga was Mrs. D.B. I do not consider that it is plausible that this is correct because the service records do not record such service.

19. I have already provided my reasons why I am not reasonably satisfied that the veteran rendered British nuclear test defence service under the Act on the basis that it has not been established that he was at Maralinga between 27 September 1956 and 30 April 1965. However, I will consider whether the claim of the applicant can be upheld under the hypothesis that is put forward by the applicant.

    Step 1 of Deledio

20. The first Deledio[22] step requires the examination of the material to ascertain whether it points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. There is no issue that the material before me raises a hypothesis that the veteran’s exposure to radioactive particles at Maralinga caused him to develop colon cancer which metastasised and caused his death.

    [22] Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391.

    Step 2 of Deledio

21. The SoP concerning Malignant Neoplasm of the Colorectum which is now in force is SoP No. 37 of 2013 which is the Statement of Principles concerning malignant neoplasm of the colorectum (No. 37 of 2013) as amended by the Veterans’ Entitlements (Statements of Principles—Cumulative Equivalent Dose) Amendment Determination 2017 (No. 58 of 2017). This amended legislative instrument commenced on 18 September 2017.

    Step 3 of Deledio

22. The applicant has put forward a hypothesis that the veteran’s exposure to radioactive particles at Maralinga caused him to develop colon cancer which metastasised and caused his death. The case of the applicant is based on the opinion of Dr Douglas that the veteran would have had a high probability of receiving an internal ionizing radiation dose of more than 0.1 sievert because of his inhaling radioactive dust containing plutonium during his service at Maralinga.

23. Clause 4 of SoP No. 37 of 2013 provides that the RMA is of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the colorectum and death from malignant neoplasm of the colorectum can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA.

24. Clause 6 of SoP No. 37 of 2013 refers to factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colorectum or death from malignant neoplasm of the colorectum with the circumstances of a person’s relevant service. That clause contains factor (i) which refers to circumstances where the veteran:

    “having received a cumulative equivalent dose of at least 0.1 sievert of ionizing radiation to the colorectum at least five years before the clinical onset of malignant neoplasm of the colorectum”.

25. Clause 9 of SoP No. 37 of 2013 contains the following definition of "cumulative equivalent dose"which is referenced in factor 6(i):

    "cumulative equivalent dose" means the total dose of ionising radiation received by the particular organ or tissue from external exposure, internal exposure or both, apart from normal background radiation exposure in Australia, calculated in accordance with the methodology set out in Guide to calculation of 'cumulative equivalent dose' for the purpose of applying ionising radiation factors contained in Statements of Principles determined under Part XIA of the Veterans' Entitlements Act 1986 (Cth), Australian Radiation Protection and Nuclear Safety Agency, as in force on 2 August 2017;

    Note 1: Examples of circumstances that might lead to exposure to ionising radiation include being present during or subsequent to the testing or use of nuclear weapons, undergoing diagnostic or therapeutic medical procedures involving ionising radiation, and being a member of an aircrew, leading to increased levels of exposure to cosmic radiation.

    Note 2: For the purpose of dose reconstruction, dose is calculated as an average over the mass of a specific tissue or organ. If a tissue is exposed to multiple sources of ionising radiation, the various dose estimates for each type of radiation must be combined.

26. In support of the hypothesis put forward by the applicant there is reliance upon the opinion of Dr Douglas who is of the opinion that the veteran’s exposure to radioactive particles at Maralinga caused him to develop colon cancer which metastasised and caused his death. The applicant submits that the hypothesis is supported by the opinion of Dr Douglas who, in his report dated 10 October 2017, considers that the veteran would have had a high probability of receiving an internal ionizing radiation dose of more than 0.1 sievert because of inhaling radioactive dust containing plutonium during his service at Maralinga. While the applicant does not put forward a hypothesis that is upheld by the SoP that is in force (that is, the legislative instrument that commenced on 18 September 2017), the Tribunal is nevertheless required, under s 120A(3) of the Act, to consider whether the hypothesis is upheld by the SoP that “is in force”.[23]

    [23] Gorton v Repatriation Commission (2001) 110 FCR. 321; [2001] FCA 1194 per Heerey J at 331-333, per Allsop and Emmett JJ at 335 and 337.

27. In giving evidence Dr Douglas was asked if he applied the SoP that is in force (that is, the legislative instrument that commenced on 18 September 2017) and he stated that he believed that he did. However, in his report of 10 October 2017, Dr Douglas referred to the SoP dated 21 June 2013. There is no mention in his report of the SoP that is now in force. In giving evidence Dr Douglas asserted that he was highly critical of the SoP that is in force as well as the Guide[24] that is referred to in clause 9 of the SoP. In my view Dr Douglas was incorrect when he stated that in the Guide “there’s nothing to talk about calculating or estimating or assuming or doing anything in relation to inhaled plutonium dust from nuclear testing”. He later acknowledged that the Guide (at p. 13) in referencing biokinetic modelling does refer to a “respiratory model for inhalation”.

    [24] Guide to calculation of 'cumulative equivalent dose' for the purpose of applying ionising radiation factors contained in Statements of Principles determined under Part XIA of the Veterans' Entitlements Act 1986 (Cth), Australian Radiation Protection and Nuclear Safety Agency, as in force on 2 August 2017.

28. Dr Douglas was also asked whether he did “cotton on” to the fact that the definition of cumulative equivalent dose in the SoP that is in force requires him to apply the methodology document, he replied “it does and I tried to”.

29. The SoP that is in force does not uphold the hypothesis that is put forward by the applicant.  This is because there is no material before me which points to the veteran having received the prescribed cumulative equivalent dose that is calculated in accordance with the methodology set out in the Guide as required by the definition of "cumulative equivalent dose" in clause 9 of the SoP.

30. During the hearing of the application I stated that if the hypothesis that is put forward by the applicant was not upheld by the SoP which is in force, then under the principles explained in Gorton I would be required to consider whether the applicant had an accrued right under an earlier SoP that was in force at the time of the decision of the respondent.[25] That decision was made on 30 July 2013, on that date SoP No 37 of 2013 was in force having come into force on 3 July 2013. I will accordingly consider the application of that SoP.

    [25] (2001) 110 FCR. 321; [2001] FCA 1194.

31. Clause 6(i) of SoP No 37 of 2013 (which came into force on 3 July 2013) provided that a reasonable hypothesis has been raised connecting malignant neoplasm of the colorectum or death from malignant neoplasm of the colorectum with the circumstances of a person’s relevant service is:

    (i)having received a cumulative equivalent dose of at least 0.1 sievert of ionising radiation to the colorectum at least five years before the clinical onset of malignant neoplasm of the colorectum;

1. Clause 9 of SoP No 37 of 2013 provided the following definition of “cumulative equivalent dose”:

   “cumulative equivalent dose” means the total dose of ionising radiation received by the particular organ or tissue. The formula used to calculate the cumulative equivalent dose allows doses from multiple types of ionising radiation to be combined, by accounting for their differing biological effect. The unit of equivalent dose is the sievert. For the purposes of this Statement of Principles, the calculation of cumulative equivalent dose excludes doses received from normal background radiation, but includes therapeutic radiation, diagnostic radiation, cosmic radiation at high altitude, radiation from occupation related sources and radiation from nuclear explosions or accidents.

   The Tribunal was informed that 1 sievert (Sv) is 1000 millisieverts (mSv); hence, 0.1 Sv is equivalent to 100mSv.

2. The opinion of Dr Douglas is made on a number of assumptions. In his report dated 10 October 2017 he states

   For the purposes of providing my opinion concerning the relationship between [the veteran]’s exposures during his service in the RAAF, and the subsequent development of colorectal cancer, I have accepted your proposition that [the veteran] was at Maralinga in 1957 during the detonation of an atom bomb, and subsequently was involved with the hands-on removal of equipment from contaminated Lincoln bombers at Amberley.

3. Dr Douglas stated that in his report he gave an opinion about the cumulative equivalent dose received by the veteran without knowing whether the veteran had respiratory protection or what he was doing at Maralinga.

4. At this stage I am not engaged in a fact-finding exercise. However, it is not open for me on the material before me to conclude that the material points to the veteran not having respiratory protection while he was said to be at Maralinga. The assumption that Dr Douglas made about the veteran serving at Maralinga does not enable me to conclude that there is material that points to the veteran being at Maralinga.

5. The applicant relied upon the construction of clause 6(i) of SoP No 37 of 2013 by this Tribunal in Mahoney and Repatriation Commission[26] where it was remarked:

   The wording of factor 6(i) does not require that the whole of the colorectum be exposed to the requisite level of radiation. Nor does it suggest on its face that exposure of parts of the organ – especially those parts of the organ that are vulnerable to ionising radiation – is only problematic if the exposure is averaged across the whole organ (including parts that were not exposed, and which might not be vulnerable to the effects of ionising radiation) and the average figure exceeds the requisite level. The applicant’s interpretation of the words in factor 6(i) makes sense when one has regard to the reference in clause 9 to “the particular organ or tissue”. It also makes sense having regard to the purpose of the SoP, which is to provide an authoritative guide as to when a condition (in this case, a particular form of cancer) is related to the circumstances of the person’s service. As Dr Busby pointed out in his evidence, the risk of cancer only arises when certain cells within the colorectum are exposed to ionising radiation. It would be odd if the Repatriation Medical Authority intended that radiation be assessed across the whole organ (including parts of the organ that were known not to be vulnerable to the development of cancer as a consequence of radiation exposure) when vulnerable but localised areas of tissue might have been exposed to an excessive dose. (emphasis in original)

   [26] [2015] AATA 379 at [19].

6. Dr Tinker gave evidence that the definition of an “equivalent dose” in the original SoP was drawn from the ICRP methodology. Dr Tinker in his report dated 21 May 2018 explained:[27]

   The ICRP methodology relies on the equivalent dose, which is the mean absorbed dose averaged over the mass of a particular tissue or organ multiplied by a radiation-weighting factor. This enables a calculation of cumulative equivalent dose, which is the total equivalent dose of ionising radiation received by a particular organ or tissue from external exposure, internal exposure or both. Averaging over only part of the organ or tissue is not consistent with the definition of equivalent dose.

   [27] Exhibit O, pp.3-4.

7. The relevance of ICRP methodology was not challenged by the applicant or Dr Douglas. The specific claim about “equivalent dose” being drawn from the ICRP methodology was not disputed by Dr Douglas, nor was it challenged in cross-examination. The applicant has not disputed that the evidence of Dr Tinker is consistent with the ICPR methodology which contains the following definitions:[28]

   [28] Exhibit Q.

   Equivalent dose, H_T

   The dose in a tissue or organ T given by:

   H_T =     Ʃ w_RD_T,R
                  ^R

   where D_T,R is the mean absorbed dose from radiation R in a tissue or organ T, and w_R is the radiation weighting factor. Since w_R is dimensionless, the unit for the equivalent dose is the same as for absorbed dose, J kg^–1, and its special name is sievert (Sv).

   Mean absorbed dose in a tissue or organ (T), D_T

   The absorbed dose D_T, averaged over the tissue or organ T, which is given by

   D_T =     Ɛ_T

   m_T

   where Ɛ_T is the mean total energy imparted in a tissue or organ T, and m_T is the mass of that tissue or organ.

   Radiation weighting factor, w_R

   A dimensionless factor by which the organ or tissue absorbed dose is multiplied to reflect the higher biological effectiveness of high-LET radiations compared with low-LET radiations. It is used to derive the equivalent dose from the absorbed dose averaged over a tissue or organ.

8. I respectfully differ from the interpretation of the Tribunal in Mahoney. No submission was made before the Tribunal in Mahoney that factor 6(i) should be construed consistently with the ICRP methodology. Certainly, the decision in Woodward v Repatriation Commission,[29] where the Full Federal Court described the proper approach to interpreting a SoP where language was used with a specialized meaning in a particular area of specialty, would appear to have not been cited before the Tribunal. Evidence to establish the meaning of a technical term in legislation is certainly admissible.[30] I accept the unchallenged evidence of Dr Tinker that the expression “equivalent dose” is an expression from the ICRP methodology with an accepted technical meaning.  The SoP is a legislative instrument and the expression “equivalent dose” must be interpreted having regard to the accepted technical meaning.[31]

   [29] (2003) 131 FCR 473 at 493-494 (Black CJ, Weinberg and Selway JJ).

   [30] Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 562 at 572 per Lockhart J. See also, DC Pearce, Statutory Interpretation in Australia (9^th ed., 2019), p. 161 [4.25].

   [31] Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 562 at 572 per Lockhart J.

9. The evidence of Dr Douglas in which he gave his opinion as to the cumulative equivalent dose was not based on the ICRP methodology. While it is not permissible for me at this stage of my reasoning to make a finding of fact as to the cumulative equivalent dose there is no material before me which is based on the ICRP methodology that points to the organ having received the prescribed level of radiation. Certainly, Dr Douglas in giving evidence stated that he did try to apply the methodology document but he did not give evidence that he actually applied that document.

10. I conclude that the hypothesis that is put forward by the applicant is not upheld by the original SoP.

11. It is a long-standing principle of administrative review that as a decision-maker I am not confined to the case which is advanced by an applicant.[32]  I have reviewed the material before me to ascertain whether the material before me points to any of the other factors in clause 6 of SoP No 37 of 2013 and SoP No 38 of 2013.. A claim form that was lodged by the applicant on 27 October 1997 states that the veteran was a “very light smoker and a very light drinker”. The respondent has quite properly investigated the smoking habit of the veteran from the time of his enlistment in 1946 until when he passed away in 1970 and the total tobacco consumption of the veteran was 1.52 pack years.[33] The material before me does not point to the veteran having smoked at the level of pack-years that is prescribed by the SoPs.

    [32] Mills and Repatriation Commission [2011] AATA 336.

    [33] Exhibit A, T26, p.78.

12. The claim of the applicant does not succeed at the third Deledio step.

    Step 4 of Deledio

13. As the hypothesis that was put forward by the applicant has not been upheld by a SoP, I am not required to consider, under section 120(1) of the Act, whether, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's disease was not war-caused. In Forrester v Repatriation Commission Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”.[34] However, I have not lightly come to the conclusion that I am satisfied beyond a reasonable doubt that the disease of the veteran was not war-caused.

    [34] Forrester v Repatriation Commission [2013] FCA 898 at [80].

14. I have given great weight to the evidence of Dr Tinker who is the Director of Assessment and Advice in ARPANSA. In giving evidence he outlined his extensive experience. He leads a team of scientists who undertake risk assessments and examine the health impacts of radiation on people and the environment. He has been working in ARPANSA since 2002 and prior to that he worked in New Zealand in a monitoring and measurement role. I have concluded that he has considerable expertise in the field of health impacts of radiation on people.

15. In his report dated 21 May 2018 Dr Tinker stated his opinion that the ICRP methodology was the world’s best practice for assessing whether a person received a “cumulative equivalent dose” as defined in SoP No 37 of 2013 as amended. In his report he outlined the basis of how an equivalent dose under the ICRP methodology is estimated. Dr Tinker remarked that estimating the dose is based on the type of exposure (e.g. from external radiation fields, radionuclide intakes, etc.), the primary physical interactions in human tissues and on judgements about the biological reactions resulting in stochastic health effects. Radiation effects therefore depend not only on the absorbed dose but also on the type of radiation, on the distribution of energy absorption in time and space within the human body, and on the radiosensitivity of the exposed tissues or organs.

16. Dr Tinker remarked that the equivalent dose is derived by multiplying the mean absorbed dose averaged over a particular tissue or organ by a radiation-weighting factor. The radiation-weighting factor accounts for the biological damage caused by different radiation types. Dr Tinker pointed out in his report and under cross-examination that alpha particles are much more damaging than photons because they are highly ionizing. In his report Dr Tinker mentioned that alpha particles are unable to penetrate very far through matter and are brought to rest in less than a tenth of a millimetre of living tissue. He remarked that photons travel as electromagnetic radiation and can pass through or penetrate deep into the body. He explained why photons are assigned a radiation-weighting factor of 1 and alpha particles are assigned a radiation weighting factor of 20.

17. It is true that Dr Douglas certainly disagrees with the ICRP methodology. In cross-examination he was asked whether in determining the cumulative equivalent dose, he took into account the guide to calculating the dose that was set out by ARPANSA. He answered:

    I - yes, I’ve been into that in great detail and it’s - again, I’m afraid, I’m going to give you not a full critique because I haven’t done it, but I’m highly critical of it because in the document there’s nothing to talk about calculating or estimating or assuming or doing anything in relation to inhaled plutonium dust from nuclear testing.

    Essentially Dr Douglas has disagreed with the ICRP methodology but has not provided the Tribunal with a “full critique” of that methodology. In these circumstances I do not accept that his opinion has any validity at all.

18. Dr Tinker was asked whether the body of scientific evidence supports the majority report of the SERRI committee. Dr Tinker answered: “That's correct.  So the SERRI committee produced a main report with recommendations.” Dr Tinker stated that there is no epidemiological evidence, which is independent of both the ICRP methodology and the minority report that supports the idea that there is an increased risk from using the method proposed by the minority.

19. I do not believe that there any basis at all to find that the veteran was present in any of the areas described in ss 69B(2) of the Act during the relevant period prescribed therein. I consider that the service records have not been shown to be inaccurate. The hypothesis put forward by Dr Douglas regarding the applicability of the ICRP methodology is not supported by epidemiological evidence which is independent from the ICRP methodology and the minority SERRI report.

    CONCLUSION

20. I acknowledge the service of the veteran who served his country well, his extensive service is reflected in his promotion record. However, under the scheme of the Act, I am unfortunately unable to grant this application.

    DECISION

21. I affirm the decision under review.

I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................

Associate

Dated: 13 May 2020

Dates of hearing:	5 April, 7 August 2018
Date final submissions received:	6 November 2018
Counsel for the Applicant:	Mr Anthony Harding
Solicitor for the Applicant:	Mr Terence O'Connor
Counsel for the Respondent:	Mr Gim Del Villar
Solicitor for the Respondent:	Mr Jamie Watts, Australian Government Solicitor